The new Resolution was adopted in conformity with Chapter VII, articles 39-51, of the United Nations Charter, on “action with respect to threats to the peace, breaches of the peace, and acts of aggression.” (United Nations Charter (signed June 26, 1945, in force on Oct. 24, 1945), Ch. VII, U.N. website.) Specifically, the Security Council took measures under article 41 of the Charter, which states:

The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations. (Id.)

Highlights of the Resolution

In Resolution 2356, the Security Council “[c]ondemns in the strongest terms the nuclear weapons and ballistic missile development activities including a series of ballistic missile launches and other activities” carried out by North Korea since September 9, 2016, “in violation and flagrant disregard of the Security Council’s resolutions … .” (Resolution 2356, item 1.) The Council also reaffirmed previous decisions calling for North Korea to “abandon all nuclear weapons and existing nuclear programmes in a complete, verifiable and irreversible manner, and immediately cease all related activities”; to discontinue “launches that use ballistic missile technology, nuclear tests, or any other provocation; to suspend all activities related to its ballistic missile programme”; and to “abandon any other existing weapons of mass destruction and ballistic missile programmes in a complete, verifiable and irreversible manner; … .” (Id. item 2.)

In addition, the Council decided to apply measures specified in paragraph 8(d) (as modified by subsequent resolutions) and 8(e) of Resolution 1718 (2006) to individuals and entities listed in Annex I and II of the new Resolution and also “to any individuals or entities acting on their behalf or at their direction.” (Id. item 3.) As summarized in a Security Council press release on Resolution 2356, those measures

mandated all Member States immediately to freeze the funds, other assets and economic resources on their respective territories that were either owned or controlled by the persons and entities listed in Annexes I and II, designated by the Council or its “1718 Committee” as being engaged in or providing support for Pyongyang’s nuclear-related programme — and to prevent the entry into or transit through their territories by individuals listed in Annex I. (Security Council Unanimously Adopts Resolution …, supra.)

These sanctions now cover 14 additional persons under Annex I and four additional entities under Annex II of Resolution 2356. The individuals include, as first on the list, Cho Il U, who is believed to be in charge of North Korea’s overseas espionage operations and foreign intelligence collection. (Resolution 2356, Annex I.) The entities include two trading companies: the Koryo Bank, which reportedly handles the overseas transactions of Office 38, said to be “a shadowy body that manages the private slush funds of the North Korean leadership,” and the Strategic Rocket Force of the Korean People’s Army. (Nichols, supra.)

]]>Court of Justice of the European Union: Recognition of Treaty Negotiations as a Legal Act, Validation of Initiative to Stop TTIPhttp://loc.gov/law/foreign-news/article/court-of-justice-of-the-european-union-recognition-of-treaty-negotiations-as-a-legal-act-validation-of-initiative-to-stop-ttip/
Wed, 31 May 2017 15:59:29 +0000http://loc.gov/law/foreign-news/?post_type=glm_article&p=11392(May 31, 2017) On May 10, 2017, the General Court of the Court of Justice of the European Union (CJEU), which, inter alia, deals with actions for annulment of European Commission decisions brought by individuals, businesses, or governments of the EU Member States, reviewed the case M. Efler and Others v. the European Commission. The Court agreed with the request of the plaintiff and annulled a European Commission decision denying the registration of the European Citizens’ Initiative (ECI) called Stop TTIP. (CJEU, Judgment of the General Court (First Chamber) of 10 May 2017, Michael Efler and Others v European Commission, Case T-754/14 (Judgment), CURIA.)

In July 2014, a group of citizens asked the European Commission (the EU Executive body) to register an ECI aimed at stopping negotiations of the Transatlantic Trade and Investment Partnership (TTIP) between the EU and the United States and preventing the conclusion of the Comprehensive Economic and Trade Agreement between the EU and Canada. (Transatlantic Trade and Investment Partnership, Office of the United States Trade Representative website (last visited May 19, 2017); In Focus: EU-Canada Comprehensive Economic and Trade Agreement (CETA), EUROPA (last visited May 19, 2017). The Commission refused to register the ECI, claiming that the proposed initiative fell outside the scope of art. 11(4) of the TEU because the initiative did not question an EU legal act required for the implementation of the Treaties but simply invited the Commission to submit a recommendation to the Council to repeal the Council decision authorizing the opening of the TTIP negotiations. The Commission claimed that Council decision granting the negotiating mandate is a preparatory act that has legal effect only for the two institutions concerned and does not modify the EU acquis. (European Commission Communication, C(2014) 6501 final, Sept. 10, 2014, EUROPA.)

The procedure for concluding international agreements is laid down in article 218 of the TFEU. Member States are not allowed to negotiate international agreements with non EU-countries or international organizations. It is the European Commission that submits recommendations to the Council to open negotiations, negotiates the agreement, and finally proposes to the Council a decision to conclude the negotiations. The European Parliament is kept informed of the proceedings and, for certain types of international agreements, is requested to cast an up or down vote. (Consolidated Version of the Treaty on the Functioning of the European Union, May 9, 2008, 2008 O.J. 115.)

The plaintiff also claimed that by refusing the ECI, the Commission violated the principle of good administrative practice as stated in article 41 of the Charter of Fundamental Rights of the European Union. (Judgment; Charter of Fundamental Rights of the European Union, 2000 O.J. (C 364) 1, European Parliament website.)

The General Court upheld the action and annulled the Commission decision. The Court asserted that the fundamental principle of democracy within the EU requires the interpretation of the concept of a legal act as including a decision to open negotiations for the purpose of concluding an international agreement. (Judgment, ¶¶ 13, 30, & 34-.) The Court also noted that the purpose of the ECI is to stimulate democratic debate within the legislative process prior to the adoption of an act. The exercise of such an initiative cannot be considered interference with legislative procedure or an infringement on the institutional competences of the Commission. (Id. ¶¶ 37, 42 & 45.)

Within two months of notification of the decision of the General Court, it may be appealed before the Court of Justice. The appeal must be limited, however, to points of law. (TFEU, art. 256, supra.)

Prepared by Micaela Del Monte, Law Library Visiting Research Fellow, in collaboration with Peter Roudik, Director of Legal Research.

Taking note of the February 25, 2016, resolution of the European Parliament calling upon EU Member States to establish an arms embargo against Saudi Arabia, the Dutch parliament motion urged the government not only to halt approval of licenses to export military and dual use goods to Saudi Arabia, but also, in line with the concept of a harmonized European arms export policy, called upon the other Member States to adopt a similar stance against arms exports to Saudi Arabia. (Wapenexportbeleid, Nr. 273, supra; Deutsch, supra; European Parliament Resolution of 25 February 2016 on the Humanitarian Situation in Yemen (2016/2515(RSP)), European Parliament website.) The Netherlands is apparently the first EU Member State to formally ban arms exports to Saudi Arabia following the issuance of the European Parliament resolution. (Bradley McAllister, Dutch Parliament Approves Ban on Arms Exports to Saudi Arabia, PAPER CHASE (Mar. 16, 2016).)

Britain and France are reportedly “the main European suppliers of arms to Saudi Arabia.” (Deutsch, supra.) In the first half of 2015, Germany permitted the issuance of 66 arms export licenses to Saudi Arabia, valued at US$191million, but the government also prevented some arms exports that year and in January 2016 made statements indicating that it was re-evaluating its arms export policy vis a vis Saudi Arabia. (Dealing in Double Standards: How Arms Sales to Saudi Arabia Are Causing Human Suffering in Yemen, ATT MONITOR 3 (2016).) As for the Netherlands, “[b]etween 26 March 2015 and 15 January 2016, the Netherlands issued four licences for Saudi Arabia: two for export and two for transit,” with a total value of US$2.98 million in value, “covering components for military training aircraft.” (Id.)